Commissioner for Government Transport v Deacon [1957] HCA 35; (1957) 97 CLR 535 (10 June 1957)

HIGH COURT OF AUSTRALIA

COMMISSIONER FOR GOVERNMENT TRANSPORT v. DEACON [1957] HCA 35; (1957) 97 CLR 535

Workers' Compensation

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1) and Taylor(1) JJ. .

CATCHWORDS

Workers' Compensation - Commissioner for Government Transport - Officer - Injury - Incapacitated - Employment - Termination - Subsequent treatment - Medical - Hospital - Ambulance - Expenses - Recovery - Mutatis mutandis - Workers' Compensation Act 1926-1942 (N.S.W.), s. 10 (3) (c) - Transport Act 1930-1952 (N.S.W.), ss. 124 (1), (2), (3), 124A, 124B, 124C, 142D.

HEARING

Sydney, 1957, April 3-5;
Melbourne, 1957, June 10. 10:6:1957
APPEAL from the Supreme Court of New South Wales.

DECISION

June 10.
THE COURT delivered the following written judgment: -
The appellant, who is the Commissioner for Government Transport, obtained that the meaning and application given by the decision of the Supreme Court to s. 124 of the Transport Act 1930-1952 produced important consequences in the ordinary course of the administration of his department. It was not thought necessary to trace out precisely the consequences of the decision but, the questions being entirely questions of law, it was considered enough to place the commissioner upon terms as to costs, and special leave was granted. (at p540)

2. In the view we take of the appeal, which has now been argued before us, it appears to involve two matters under s. 124. The first is whether, when the officer who has been incapacitated is retired from or leaves the transport service, he must rely for all his compensatory relief thereafter upon the Workers' Compensation Act 1926-1954. The second matter is whether, up to the point of time, whatever it is, when s. 124 ceases to afford any such relief to him, there are limits still governing the amount of the cost of medical or hospital treatment or of ambulance service recoverable by him under s. 124 (3), although the same limits no longer operate in the case of claims under the Workers' Compensation Act 1926-1954 itself. (at p540)

3. The facts out of which these questions arise are simple. The respondent Deacon had joined the transport service in 1948 and in June 1950 was a conductor upon a double decker bus. In that month he must be taken to have sustained an injury arising out of and in the course of his employment. On 27th November 1953 he was admitted to hospital for causes attributable to the injury and there he underwent a surgical operation. On 5th March 1954 he was retired from the service. On 27th March 1954 he was discharged from hospital. He incurred medical and hospital expenses before 5th March 1954 and after 5th March 1954, that is from 5th March to 27th March 1954. The first question is whether the expenses incurred after 5th March are recoverable under s. 124. The second question is whether, for whatever medical and hospital expenses are recoverable under s. 124, there is an upper limit and what is that limit. (at p541)

4. Sub-sections (1) and (2) of s. 124 in their present form go back to Act No. 19 of 1936. Sub-section (3) upon which the questions arise was added by Act No. 23 of 1943. Sub-sections (1), (2) and (3) of s. 100B of the Government Railways Act 1912-1955 are in the same form and in that form go back respectively to the same enactments. But in a different form s. 100B has a longer history. It was introduced by Act No. 69 of 1916 into the Government Railways Act 1912. When the Transport Act 1930 (Act No. 18 of 1930) separated the administration of the tramway services from the railway services, s. 124 was enacted in that Act in the same form as that in which s. 100B then stood. (at p541)

5. Section 100B and s. 124 have formed a fruitful source of litigation and the change of form was doubtless a consequence of the difficulties in the provisions which decided cases had disclosed. As sub-ss. (1) and (2) of ss. 100B and 124 had come to stand by the time sub-s. (3) was added to those respective sections their effect was plain enough. Stated without the qualifications and more precise conditions necessarily involved, the operation of sub-ss. (1) and (2) was to confer upon an officer incapacitated by injury arising out of and in the course of his employment in the service a right, so long as he was unable to do the same work as before and as he remained in the service, to receive the same salary as he otherwise would have done. To ensure that the right ended when the service terminated the sub-sections concluded with an express provision: "but such salary shall cease to be payable where such officer is retired from or otherwise leaves the transport (or railway) service". There is a correlative expression in s. 124B of the Transport Act, closely corresponding with s. 100D of the Government Railways Act, sections both of which in their present form were inserted by Act No. 19 of 1936. These provisions are concerned with an option or election which is conferred upon the officer. The expression in s. 124 which we have called correlative occurs in restating the right the officer possesses unless the election is exercised. Thus s. 124B (1) says that "he shall, to the exclusion of any right while he remains in the transport service to compensation or damages against the Commissioner for Road Transport and Tramways, continue to be so entitled during incapacity attributable to the injury and while he remains in the transport service unless" etc. It seems clear enough that after an incapacitated man ceases to be an officer of the service these provisions mean that (assuming he does not resort to some cause of action for damages at common law) he should rely on the compensatory remedies for his incapacity which the Workers' Compensation Act 1926-1954 confers. No doubt theoretically the prima facie requirement of s. 53 of that Act that a claim shall be made within six months of the injury might create a difficulty: for an officer, while he is receiving salary as provided in s. 124, is unlikely to make a contingent claim for workers' compensation in case his service is terminated. But it would readily be found that a reasonable cause existed. It may be remarked that in Laumets v. Commissioner for Railways (N.S.W.) (1953) 89 CLR 15, at p 23 , as was there noted, s. 53 was not relied upon. (at p542)

6. There was, however, one result of the division between the operation of s. 124 of the Transport Act (or of s. 100B of the Government Railways Act as the case might be) and of the Workers' Compensation Act which must at times have worked to the material disadvantage of the officer who remained in the service. Under s. 10 of the Workers' Compensation Act, if and when it applied, the officer who had been incapacitated by injury arising out of and in the course of his employment would be entitled to receive, to the extent provided, the cost of medical treatment, hospital treatment and ambulance service. But until the adoption of sub-s. (3) by Act No. 23 of 1943, an officer who, although incapacitated from work, was receiving his salary as a result of sub-s. (1) or sub-s. (2) of s. 124 (or of s. 100B as the case might be) could not claim as of right to be reimbursed medical, hospital or ambulance services. It was obviously to remedy this disadvantage that sub-s. (3) was added to each of the above sections. That sub-section provides as follows: "(3) An officer who has been incapacitated by injury arising out of and in the course of his employment shall, except where such injury was caused by his own serious and wilful misconduct, be entitled, in addition to any payment under subsection one or subsection two of this section, to the cost of such medical or hospital treatment or ambulance service as may be reasonably necessary having regard to the injury received by the officer. The provisions of subsections two to seven both inclusive of section ten of the Workers' Compensation Act, 1926-1942, shall, mutatis mutandis, apply to and in respect of such medical or hospital treatment or ambulance service." It will be seen that this sub-section does not contain an express statement corresponding with the provision found in sub-ss. (1) and (2) that the salary shall cease to be payable when such officer is retired from or otherwise leaves the transport (or railway) service. Nor can the language of s. 124B (or s. 100D as the case may be) apply: for, being framed before the adoption of sub-s. (3) now under discussion, that language is expressed in terms of compensation or damages. As a result sub-s. (3) has been interpreted by the Supreme Court (Street C.J. and Herron J., McClemens J. dissenting) Deacon v. Commissioner for Government Transport (1956) SR (NSW) 405; 73 WN 506 as continuing to apply to an officer after his service has terminated and entitling him to the expenses of medical and hospital treatment and ambulance services incurred after that event in respect of an injury by which he was incapacitated while he still was in the service. (at p543)

7. After some hesitation we have come to the conclusion that on a reading of the provisions contained in ss. 124 to 124B as a whole the more natural interpretation of sub-s. (3) of s. 124 is that which makes it accessory to sub-ss. (1) and (2) and confines its operation accordingly to officers who have been incapacitated and who continue to receive or to be eligible to receive the benefit of sub-s. (1) or sub-s. (2). (at p543)

8. In adopting this view we have been influenced by a number of considerations. In the first place it is evident from the last five lines of sub-s. (3) that it proceeds on the basis that s. 10 of the Workers' Compensation Act cannot apply of its own force to cases within sub-s. (3). Yet clearly enough once an officer is retired from or otherwise leaves the transport service that Act does apply to him and s. 10 gives the very benefits which sub-s. (3) confers "mutatis mutandis". In the second place sub-s. (3) gives these benefits "in addition to any payment under subsection one or subsection two of this section" and it is natural to understand these words as meaning that the benefits were by way of quantitative enlargement of the relief afforded by sub-ss. (1) and (2) and were not new and independent rights to which the duration of the principal right was irrelevant. In the third place the policy and purpose of adding sub-s. (3) is evident enough. It was to fill an omission. Medical, hospital and ambulance expenses were not covered by s. 124 and yet the officer would become entitled to them if, at the cost of losing a substantial part of the payments he was receiving as salary he elected to take workers' compensation. But to fill up this omission it was enough to deal with the period up to the officer's retirement. After that he became entitled to all these benefits under s. 10 of the Workers' Compensation Act of its own force. Great weight was attached in the argument for the appellant commissioner to the word "officer" in sub-s. (3). It was said that he was no longer an "officer" when he had retired and therefore his qualification ceased. We would not be disposed ourselves to place very much reliance upon this consideration: for, notwithstanding some want of strict logic, it would seem not an unnatural use of language to describe a man as an officer though the rights acquired in that capacity were to be realised after his occupation of the office had terminated. But of course the use of the expression fits in with the general intention which our conclusion ascribes to the draftsman. That means that for the hospital expenses incurred after 5th March 1954 the respondent Deacon must rely on the Workers' Compensation Act. It appears that the point was not taken as to medical expenses but, apart from this, medical expenses fall also under the application of the interpretation we have adopted. It governs also the right to ambulance expenses. (at p544)

9. The last paragraph of sub-s. (3) requires that sub-ss. (2) to (7) of s. 10 of the Workers' Compensation Act 1926-1942 shall mutatis mutandis apply to and in respect of such medical or hospital treatment or ambulance service. These sub-sections, among other things, prescribe maximum limits to the weekly cost and to the total cost of hospital treatment, to the total cost of medical treatment and to the total cost of ambulance service. It will be enough to set out s. 10 (3) (c), which deals with the maximum total cost of hospital treatment, and to add that like provisions are made for the maximum cost of medical treatment and ambulance service. Section 10 (3) (c) is as follows: - "The maximum sum for which an employer shall be liable for hospital treatment afforded to a worker in respect of the same injury (whether such treatment is afforded at different stages of the injury or not) shall be twenty-five pounds unless the Commission upon application made from time to time by or on behalf of the worker directs that the employer shall be liable for a further sum to be specified in the order." These limits have been increased since 1942 by a number of successive amendments of the Workers' Compensation Act: s. 2 (3) (a) of Act No. 20 of 1945; s. 2 (1) (e) (i) and (iv) of Act No. 40 of 1948; s. 4 (a) (v) to (x) of Act No. 20 of 1951; s. 4 (a) of Act No. 21 of 1953. The last-mentioned amendment results in the limitation of the total cost of hospital treatment being a maximum amount of 150 pounds or such greater sum as may be prescribed. By regulations published in the Gazette of 15th January 1954 a greater sum was prescribed, the amount being 300 pounds. (See N.S.W. Rules, Regulations, Bylaws &c. 1954, p. 10.) In the same way a maximum sum for the cost of medical treatment was prescribed at 300 pounds. Sub-paragraph (v) of par. (a) of s. 4 of Act No. 21 of 1953 inserted in s. 10 of the Workers' Compensation Act 1926 as amended the following sub-s. (9): "Any regulation prescribing a greater sum than that prescribed by this section for medical or hospital treatment or ambulance service may provide that such greater sum shall apply to medical or hospital treatment or ambulance service after the date such regulation takes effect in respect of an injury received before such date as well as to medical or hospital treatment or ambulance service in respect of an injury received after such date." The regulations referred to provided that the sums prescribed thereby should apply to medical or hospital treatment after the date of the regulation taking effect in respect of an injury received before such date as well as to medical or hospital treatment in respect of any injury received after such date. These regulations were replaced by regulations gazetted on 3rd September 1954 having the same effect. (See N.S.W. Rules, Regulations, Bylaws &c., 1954, pp. 265,266.) (at p545)

10. On the view we have already expressed no hospital or medical expenses incurred after the date of the respondent Deacon's compulsory retirement from the transport service are recoverable by him under s. 124. But up to 5th March 1954 he had incurred such expenses which appear to exceed the maxima allowed respectively for hospital and medical treatment by s. 10 of the Workers' Compensation Act 1926-1942, that is to say by s. 10 of that Act as it stood when s. 124 (3) was introduced. (at p545)

11. The limit prescribed by s. 10 of the Workers' Compensation Act then for hospital treatment was 25 pounds, subject, of course, to the power of the Commission to direct a further sum from time to time. The limit of 25 pounds was exceeded in the present case and so was the sum of 150 pounds, certainly if the cost of treatment is taken up to 27th March 1954 and is not disallowed under s. 124 after 5th March, as our view of the meaning of s. 124 (3) would require. (at p545)

12. For the better understanding of s. 10 (3) (c) as amended by the Act No. 21 of 1953 and affected by the regulation it is well to set out the resulting text of that paragraph; it is as follows: - (c) The maximum sum for which an employer shall be liable for hospital treatment afforded to a worker in respect of the same injury (whether such treatment is afforded at different stages of the injury or not) shall be 150 pounds or such greater sum as may be prescribed (scil. 300 pounds) unless the Commission upon application made from time to time by or on behalf of the worker directs that the employer shall be liable for a further sum to be specified in the order. (at p545)

13. It is evident, if this provision, together with the prescribed sum of 300 pounds which we have inserted in the foregoing for clearness, are applicable, that no further difficulty remains in the recovery of the full amount of the expenses for medical and hospital treatment, that is to say up to 5th March 1954 according to our view of s. 124 (3). But can the provision be applied in its present form? Section 124 (3) speaks of "the provisions of sub-sections two to seven both inclusive of section ten of the Workers' Compensation Act, 1926- 1942". Is it possible to treat this as covering the provisions so identified as they might be subsequently amended? (at p546)

14. Section 10A of the Acts Interpretation Act 1901-1950 (Cth.) has no counterpart in New South Wales. It is true that s. 25 of the Interpretation Act of 1897 of the State provides that where an Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted. But we are unable to regard that provision as covering such a process of amendment as has occurred in s. 10. Section 25 is directed to the not uncommon case of a repeal followed by a replacement of the same provision even though modified. Moreover it is concerned with "references". Here we have more than a reference: we have a referential adoption as law equivalent to a positive independent enactment. Nor do we think it possible to construe that referential adoption as itself conveying what may be called an ambulatory intention to incorporate the provisions in whatever shape they may afterwards be thrown by amendment. We think that sub-ss. (2) to (7) of s. 10 are simply incorporated as part of s. 124 (3) in the terms in which they were expressed at the time and all that remains is to apply the sub-sections. The result may be due to a legislative oversight, but even if we knew that to be so it could make no difference. (at p546)

15. In applying to s. 124 (3) of the Transport Act sub-ss. (2) to (7) of s. 10 of the Workers' Compensation Act there is great difficulty. The difficulty is occasioned by the vague Latin phrase mutatis mutandis. It is easy to see that, among the mutanda, the things that must be changed, is the clause "unless the Commission upon application made from time to time by or on behalf of the worker directs that the employer shall be liable for a further sum to be specified in the order". (at p546)

16. It could not be the intention that an application under s. 124 should be made to the Commission. The Commission was excluded when the earlier version of s. 100B of the Government Railways Act was dropped. Moreover the deliberate omission of sub-s. (8) of s. 10 from the provisions adopted confirms the view that no reference to the Commission was intended. But to see that the clause must be changed, that it is one of the mutanda, is one thing. To know into what it is to be changed is another. All that can be done is to realise that the legislature assumed that counterparts for the various elements in s. 10 were to be found and then to attempt to identify them. So proceeding it seems clear enough that a tribunal capable of making "orders" is to be fixed upon. Surely it can be identified as none other than the court in which suit is brought to enforce s. 124. We agree in the view expressed on this point by Street C.J., Roper C.J. in Eq. and Herron J. in Harvey v. Commissioner for Government Transport (1956) SR (NSW) 231, at p 236; 73 WN 152, at p 155 . In this particular case the District Court did not itself make an order for the increase of the maximum and in fact the District Court left the question of increasing the limit to the jury. But this appeal was not brought for the purpose of correcting such an error affecting only the particular case. (at p547)

17. We think the appeal should be allowed. Strictly speaking there should be a new trial, but no doubt the parties will agree on a course obviating further proceedings. The appellant should bear the costs of this appeal, abide his costs in the Supreme Court and pay the costs in the District Court. (at p547)

ORDER

Appeal allowed. Order of the Supreme Court discharged. Further consideration of the order to be made in lieu thereof adjourned with a view to enabling the parties to agree thereto and obviate the necessity of a new trial.

Pursuant to the condition of the order of this Court granting special leave to appeal order that the appellant pay the respondent's costs of this appeal, abide his own costs of his appeal to the Supreme Court from the District Court and pay the respondent's costs of the action in the District Court.